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Native American Law Topics

Native American Law Blog

Welcome to the Holland & Knight Native American Law Blog, that provides insights and analysis on issues facing Native American governments and organizations, including Indian tribes, tribal entities, Alaska Native Corporations and nonprofits. Our Native American Law Group offers comprehensive legal and public policy services in Indian Country, from the exercise of tribal sovereignty and governance to the development and operation of hotels, clinics, retail centers, renewable and non-renewable energy, casinos, infrastructure and utilities.

The Internal Revenue Service (IRS) on May 22, 2019, issued much awaited guidance in Notice 2019-39. This Notice allows for refinancings or refundings by Native American tribal governments of Tribal Economic Development bonds and loans (TEDs) without needing to obtain additional allocation of TED volume cap. The new Notice represents an important step in allowing tribes to currently refinance or refund outstanding TEDs without using any of the dwindling amount of TED volume cap from the U.S. Department of Treasury and IRS.
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In Knighton v. Cedarville Rancheria of Northern Paiute Indians, et al., No. 17-15515, 2019 WL 1145150 (9th Cir., March 13, 2019), the U.S. Court of Appeals for the Ninth Circuit issued a decision favorable to tribal sovereignty in affirming that the tribal court of the Cedarville Rancheria of Northern Paiute Indians (the Tribe) had jurisdiction over tort claims brought by the Tribe against a nonmember former employee of the Tribe.
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In 2018, the U.S. Supreme Court's ruling in Murphy v. National Collegiate Athletic Association allowed Congress to regulate sports wagering directly. If Congress fails to act, the authority to regulate sports wagering is delegated to the states. In the absence of federal congressional action, most states have introduced, and some have passed, legislation that legalizes sports wagering within their borders. A handful of states have introduced legislation directly impacts tribal governments who already possess gaming compacts with the state.
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When President Donald Trump signed the Tax Cuts and Jobs Act (TCJA) in December 2017, it marked the first major overhaul of the U.S. tax system in more than 30 years. Although the TCJA lowered tax rates, it also significantly curtailed tax deductions. With Democrats taking control of the U.S. House of Representatives in January 2019, tax provisions impacting tribal governments and their members are once again on the table for discussion.
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The 2018 Farm Bill is a huge legislative accomplishment. It earned a super-majority of bipartisan support in both the House and Senate, and it included dozens of provisions sought by Indian Country.
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Please join Holland & Knight and the National Congress of American Indians for a presentation providing an overview and analysis of the U.S. Department of Energy's (DOE) recently announced Tribal Energy Loan Guarantee Program (TELGP), which can guarantee up to $2 billion in loans for energy development projects by American Indian tribes.

Earlier this year, the U.S. Supreme Court ruled in Murphy v. National Collegiate Athletic Association that the Professional and Amateur Sports Protection Act violated the 10th Amendment of the U.S. Constitution because it illegally empowered the federal government to order certain states to take specific actions to disallow sports gambling.
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Prior to the Tax Cuts and Jobs Act of 2017, no incentives for investments in opportunity zones had been contained in existing tax law. In this regard, the act continues a successful history of using tax code to spur investment and interest in communities that need it. It also goes further than other laws and provisions, according to attorneys Nicole Elliott and Kristin DeKuiper, because it can uniquely be used to fund a larger variety of businesses and projects and it has no limits in the amount that can be channeled into these businesses and projects.
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The U.S. Department of Energy (DOE) is creating a new loan guarantee program that will offer attractive financing to American Indian tribes for energy development projects. While the Tribal Energy Loan Guarantee Program (Tribal Energy LGP) is authorized under the Energy Policy Act of 2005 to issue guarantees for eligible projects totaling in aggregate up to $2 billion, the program was only recently funded under the Fiscal Year 2017 Omnibus Spending Bill.
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The Tax Cuts and Jobs Act of 2017 moved through Congress and was signed into law at breakneck speed. While many got what they wanted in the new tax law, Indian Country was again disappointed by the lack of inclusion of provisions that would put tribes on an equal footing with sovereign nations. To make matters worse, modifications of the "Kiddie Tax" had unintended and harmful consequences for some Native American children and young adults. As Congress looks at next steps on tax reform, these issues must be addressed.
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The Supreme Court's 2017-2018 term has been unusually busy with cases affecting Indian tribes and tribal interests ranging from tribal trust lands, online sports betting, boundary disputes and whether an Oklahoma Tribe's Reservation has been diminished. To date, the Supreme Court has granted cert for four cases of interest to Indian Country.
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President Trump's proposed infrastructure plan as described in the "Legislative Outline for Rebuilding Infrastructure" would expand the ability of governmental bodies to issue tax-exempt bonds to finance infrastructure projects having public-private partnerships and other private business involvement.
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What is doing the "right thing" for ethical business practices in Indian Country? It is a challenge for a business to determine the best practices to follow when operating a business on tribal lands, or for a Native American tribe to consider investing in a project for economic development. So it is crucial to establish and follow ethical business practices in Indian Country. An ethical protocol will reduce the risk that the proposed project or business will fail.
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Similar to Tribes, Alaska Native Corporations (ANCs) are exempt from the definition of an "employer" under Title VII of the Civil Rights Act of 1964. This exemption applies to ANCSA corporations and related partnerships, joint ventures, trusts, or affiliates in which an ANC owns not less than 25 percent of the equity.
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A few of the enacted provisions of the Tax Cuts and Jobs Act may have an impact on tribal governments and their members, including the reduction of individual tax rates, changes to the state and local tax deduction, and the treatment of the Kiddie Tax.
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Opportunity Zones, if taken advantage of and acted upon quickly, could prove beneficial for Indian Country. This new community development program encourages long-term investments in low-income communities by allowing investors to defer and partially exclude capital gains by re-investing them into an Opportunity Zone Fund.Read more »

Holland & Knight's Native American Law Group has been named as a 2017 Practice Group of the Year by Law360. The publication recognized law firms that had significant litigation wins and considerable deals that resonated throughout the legal industry last year.
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Sonny Perdue, secretary of the U.S. Department of Agriculture (USDA), released the Trump Administration's 2018 Farm Bill and Legislative Principles on Jan. 24, 2018. "These principles will be used as a road map. They are our way of letting Congress know what we've heard from the hardworking men and women of American agriculture," Perdue said in his opening remarks before a town hall in Mifflintown, Pa.
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A decision by the U.S. Court of Federal Claims on Jan. 5, 2018, has important implications for breach of trust claims involving tribal trust funds. Most claims for mismanagement of tribal trust resources are limited to the six-year period before a suit was filed but the court ruled that claims regarding mismanagement of tribal trust funds have no such limit. This could make a huge difference in the amount of damages that a tribe can recover for mismanagement of its trust funds.
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